Recent Proposed Amendment to Freedom of Information Act May Help Moderately Ease Burden on Local Governments

At the end of May 2014, the Illinois legislature passed a bill amending the Freedom of Information Act (“FOIA” or the “Act”) in some potentially meaningful ways by reducing the obligation to produce documents already available on a public body’s website and by creating a new class of “voluminous requester.” This bill is now awaiting the Governor’s signature. While the initial implication of some of these changes — particularly the creation of a new class of requester — may raise new questions and create some confusion, in the long run we hope the change will help municipalities comply with the requirements of operating in the sunshine without unduly burdening their day to day operations.

One change to the Act is simple and straightforward and will, hopefully, help reduce the compliance burden on public bodies which face regular and repeated requests by many parties for the same records. This change involves the creation of a new section 8.5 which provides that a public body is not required to copy public records that are otherwise published on the public body’s website (unless the requester has no means of obtaining this information through a website). Instead the public body may simply refer them to the website where the record can be reasonably accessed. This change reflects the realities of 21st century communication and is a welcome addition to the Act.

A second big change to the Act is the creation of a new category of request called a “voluminous request” which appears to be a sort of intermediary category somewhat different than the existing category of “unduly burdensome” requests and grants public bodies more time and resources to respond to these voluminous requests. The term “voluminous request” is defined to include either five individual requests for more than five different categories of records or some combination of individual requests adding up to more than five different categories of records in a period of 20 days. It may also include a request that requires compiling 500 pages of public records (unless a single requested record is in excess of 500 pages) although it is not clear how a public body would know in advance of most searches that the response would exceed 500 pages. In general, this provision will not apply to news media or to non-profit, scientific and academic organizations.

If a public body believes a request is a “voluminous request,” it is given five days to respond to the request and to notify the requester, among other things, that they are treating the request as a voluminous request, explaining why and giving the requester 10 business days to amend the request so that it will no longer be treated as a voluminous request. Among other things, the notice to the voluminous requester shall also let them know that additional response time and fees may apply.

After receiving the requested response from the voluminous requester (or if no response has been received, then five days from the time the requestor should have responded), the public body then gets five more business days to respond to the requester in one of several ways. The public body has three options:

provide an estimate of the fees to be charged, which fees may be required to be paid in full before the public body copies the requested documents

deny the request as unduly burdensome and give the requester an opportunity to reduce the request to more manageable proportions

provide the records.

Regarding the fees permitted to be charged for a voluminous request, the Act makes any unpaid fee become a debt that is due and owing, and which may be collected by the municipality. In a change that will be some comfort to municipal employees who have had the experience of preparing long responses to FOIA requests that are then left uncollected by the requesting party, this amendment provides that the fee may be charged even if the requester fails to accept or collect the requested records. The amendment provides specific pricing permitted to be charged to voluminous requesters for electronic records and requires the public body to provide the requester with an accounting of the fees, costs and personnel hours in connection with the request. Unfortunately, however, the Act creates some new confusion by leaving unclear what other fees are permitted.

The Act modifies Section 6(a) to suggest that a public body may charge for the costs of a search for a review of records in response to both commercial and voluminous requests. However, it is drafted somewhat confusingly and will likely require further clarification to determine what fees will be permitted for voluminous requests. As an aside, however, as part of the changes, which may or may not apply ultimately to voluminous requests, the changes do make clear that at least for commercial requests, a body may now charge up to $10 for each hour (after the first eight hours) spent searching for and retrieving a record or examining it for redactions (and it appears that any bill for redaction might not be subject to the eight-hour exemption).

The public body also is permitted to extend their response time to voluminous requesters by an additional 10 business days to comply if any of the provisions of Section 3(e) of FOIA apply such as if records are off site, a substantial number must be collected, an extensive search is required, records have not be found immediately or records require examination by qualified personnel or another public body. Like other FOIA requests, the public body and the requester may also agree in writing to extend the time for compliance.

Like other decisions of the public body, determinations that a request is a voluminous request are subject to review by the Public Access Counselor.